Appeal
from the Circuit Court St. Francois County Honorable Shawn R.
McCarver

LAWRENCE E. MOONKY JUDGE

The
plaintiffs, Blackwell Motors, Inc. and Vicky DeShields,
appeal the summary judgment entered by the Circuit Court of
St. Francois County in favor of the defendant, Manheim
Services Corporation, in connection with their suit for title
and possession of four vehicles, trespass, and slander.
First, because Blackwell obtained the vehicles from a person
whose title to the vehicles was void, we conclude that
Blackwell, and in turn DeShields, obtained no protectible
interest in the vehicles. Second, because Manheim did not
give instructions to law enforcement or otherwise involve
itself in the criminal investigation and seizure of the
vehicles, we conclude that the Bridgeton police officers
present during the vehicles' seizure did not act as
Manheim's agents. Therefore, we affirm the trial
court's grant of summary judgment.

Factual
and Procedural Background

Manheim
Services Corporation is a motor-vehicle auctioneer in
Bridgeton, St. Louis County, Missouri. The auction is open
only to licensed motor-vehicle dealers. Any dealer wanting to
buy or sell through the auction must register with an entity
called AuctionAccess, which maintains a database of
motor-vehicle dealers and their representatives. As a
convenience to dealers conducting business at the auction,
Manheim has the buying dealer pay the purchase price into a
Manheim account. In turn, Manheim issues its own check to the
selling dealer. This procedure protects selling dealers from
the risk of dishonored checks. Manheim does not become part
of the chain of title for a vehicle unless a buying
dealer's check is returned as non-negotiable. In that
event, the selling dealer assigns its ownership rights to the
vehicle to Manheim in consideration for Manheim covering the
buying dealer's check.

Springdale
Auto Sales, Inc. was a motor-vehicle dealer registered with
AuctionAcess and authorized to conduct business through the
auction. Someone claiming to be with Springdale contacted
Manheim, and requested that Robert Hector be allowed to
purchase vehicles at the auction for Springdale. Manheim
personnel confirmed that Springdale was an authorized dealer,
and faxed paperwork to the telephone number provided by the
caller to have Manheim add Hector to the AuctionAccess
database as an authorized Springdale representative. Hector
appeared at the auction shortly thereafter for a sale on
February 10, 2009. He had paperwork in hand that listed a new
telephone number for Springdale, and he portrayed himself as
a representative of Springdale. When Manheim personnel sought
to verify Hector's authorization with Springdale, they
were misled into speaking with someone who falsely
represented himself as Springdale's owner and falsely
confirmed Hector's pretended authority. Purportedly on
behalf of Springdale, Hector then sought to buy six vehicles
at the auction. The seller of the vehicles had assigned the
certificates of title pending identification of the
purchaser(s) at auction. Auction staff completed the
assignments of the vehicle titles to Springdale when Hector,
ostensibly acting on Springdale's behalf, became the high
bidder. Hector claimed to pay for the vehicles via six
separate checks in Springdale's name and drawn on U.S.
Bank. There was, however, no such U.S. Bank checking account
number-in Springdale's name or in any other name-and the
checks were returned as non-negotiable on February 12, 2009.
Manheim reported the incident to Officer David Knapp of the
Bridgeton Police Department, who prepared an offense/incident
report dated February 14, 2009. The selling dealer at the
auction assigned its ownership rights and interests in the
vehicles at issue to Manheim.

In the
meantime, Hector purported to sell three of the vehicles to
Blackwell for a total of $31, 000. Blackwell did not pay
Springdale or Hector for the vehicles, but rather paid a
person named Cordel McElwain.[1] Hector ostensibly sold a fourth
vehicle to Blackwell on February 18, 2009 for $8,
000.[2]
Blackwell again paid Cordel McElwain for the vehicle.
Blackwell later professed to sell vehicle 3 to its retail
customer DeShields, and vehicles 2 and 4 to other retail
customers who are not parties to this lawsuit. Blackwell
retained possession of vehicle 1.

Law
enforcement seized all four of the vehicles as part of a
criminal investigation on April 2, 2009. Officer Knapp and
Detective Chris Welby of the Bridgeton Police Department were
present when the Missouri Highway Patrol seized vehicles 1
and 2 from Blackwell's premises. The other two vehicles
were seized from DeShields and from another Blackwell
customer by the Missouri Highway Patrol and the Madison
County Sheriffs Department, respectively. Detective Welby
supervised the criminal investigation and vehicle recovery.
In addition to his employment with the Bridgeton Police
Department, Officer Knapp had worked part-time for Manheim
performing security services at the auction since 2007. Knapp
was on duty as a Bridgeton police officer when the vehicles
were recovered. Detective Welby had also performed some
secondary security work for Manheim that ended several months
before the February 2009 incident with Hector. David Wright
was another Bridgeton police officer who participated in the
criminal investigation into the vehicles, but Officer Wright
was not present during the recovery of the vehicles.

The
State charged Hector with one count of stealing by deceit in
excess of $25, 000, a class B felony, and six counts of
forgery, a class C felony. He pled guilty to all counts. The
following exchange occurred during the plea hearing in which
Hector acknowledged under oath and on the record that he was
not an approved agent of Springdale and that he was not
authorized to act on its behalf.

[PROSECUTOR]: Yes, your Honor. Counts 1 through 7 all
occurred on or about February 10th, 2009 at 12:30 p.m. at
13813 St. Charles Rock Road in the County of St. Louis, State
of Missouri.

Count 1, the State would show at trial that Robert B. Hector
committed the class B felony of stealing by deceit and that
the defendant appropriated six motor vehicles of a value of
at least $25, 000, which property was in the possession of
Manheim St. Louis and defendant appropriated such property
from Manheim St. Louis and with the purpose to deprive the
victim thereof by deceit in that defendant represented to
Manheim St. Louis that he had negotiable checks, which
representations were false and known by the defendant to be
false and Manheim St. Louis relied on the representations and
was thereby induced to part with such property.

Your Honor, Counts 2 through 7, on those counts the State
would show in each of those counts that the defendant, Robert
B. Hector, committed the class C felony of forgery, in that
the defendant, with the purpose to defraud, completed a
writing, namely checks, so that it purported to have been
made by the authority of one who did not givesuch
authority.

The testimony at trial would be, your Honor, that on February
10th of '09, Mr. Hector went to Manheim St. Louis Auto
Auction, he represented himself as an agent authorized to bid
on automobiles for Springdale Auto Sales, the defendant
had not been given permission by Springdale Auto Sales to bid
on vehicles nor was he an approved agent of Springdale.

The defendant bid and purchased six vehicles from Manhiem
(sic) St. Louis of over eighty thousand dollars, the
defendant paid for these vehicles with six checks drawn on
U.S. Bank. The name on the checks was Springdale Auto Sales
but Springdale Auto Sales did not have an account, the same
account that's listed on the checks that Mr. Hector
passed to Manhiem (sic) St. Louis Auto Auction.

THE COURT: Mr. Hector, is what the prosecuting attorney said
substantially true and correct?

THE DEFENDANT: Yes, it is, your Honor.

(Emphases added.)

The
plaintiffs filed suit against Manheim. In their first amended
petition, they asserted claims for replevin, conversion,
interference with contract, slander of title, trespass, and
slander. Blackwell and DeShields claimed they were good-faith
purchasers for value, and thus had good title to and
ownership rights in the respective vehicles. Blackwell
further claimed that Officers Wright and Knapp, acting as
agents for Manheim, solicited the assistance of the Missouri
Highway Patrol in seizing the vehicles from Blackwell
"on the pretense that the seizure was in connection with
their investigation of criminal activity, " and causing
the vehicles to be delivered to Manheim. Blackwell claimed it
suffered damages, including loss of business, loss of
reputation, interruption of business, loss of the benefit of
its contracts with retail customers, costs associated with
replacing the vehicles, and costs of settling with its
customers' lenders.

Manheim
filed a motion for summary judgment. In their amended
response to Manheim's statement of uncontroverted
material facts, the plaintiffs denied that Hector was
indicted, prosecuted, and pled guilty to stealing and
forgery, objecting only on the basis that such statements
were "immaterial and irrelevant."

9. Hector was indicted by the Grand Jury of St. Louis County
for the offenses of stealing motor vehicles valued in excess
of $25, 000 (a Class B Felony as described in Section 570.030
RSMO) and forgery (a Class C Felony as described in Section
570.090). See Affidavit of David Knapp at ¶ 10; Exhibit
EE. (Footnote to statutory references omitted).

RESPONSE: Deny. The alleged statement of material fact
contained in Paragraph 9 is immaterial and irrelevant to any
issue and is, therefore, not a statement of genuine material
fact.

10.The criminal charges were prosecuted in the St. Louis
County Circuit Court in the case entitled State of
Missouri v. Robert Hector in Division 3 of that court
bearing cause number 09SL-CR03296-01. See Exhibit FF.

RESPONSE: Deny. The alleged statement of material fact
contained in Paragraph 10 is immaterial and irrelevant to any
issue and is, therefore, not a statement of genuine material
fact.

RESPONSE: Deny. The alleged statement of material fact
contained in Paragraph 11 is immaterial and irrelevant to any
issue and is, therefore, not a statement of genuine material
fact.

Importantly,
the plaintiffs then admitted that Hector did not have
authority to act for Springdale.

16. Robert Hector was not authorized to act on behalf of
Springdale Auto Sales, Inc. See Exhibit FF [the above excerpt
from the plea hearing transcript] at page 8, lines 20-25 to
page 9, lines 1-13.

RESPONSE: Admit. However, Hector was not authorized by
Springdale to purchase the vehicles from Manheim, but Manheim
transferred the vehicles to him believing that he was the
agent of Springdale. Reference: Pages 4-11, Deposition of
James Holt, Exhibit 6.

In
their first amended petition and throughout their responses
to discovery, the plaintiffs stated numerous times that
Blackwell purchased the vehicles from Hector,

A few
weeks later, the plaintiffs filed a statement of additional
material facts, seeking to establish that Hector was an
authorized buyer for Springdale according to the records of
AuctionAccess.[3]

With
regard to the trespass and slander counts, Manheim asserted
that it did not direct or instruct Officer Knapp or Detective
Welby in connection with the criminal investigation and
seizure of two of the vehicles from Blackwell. Blackwell
sought to demonstrate the existence of a genuine dispute of
this material fact through yet another statement of
additional material facts.

The
trial court entered summary judgment in favor of Manheim,
finding no genuine dispute existed that Hector misrepresented
himself as a representative of Springdale and did not have
authority to act on Springdale's behalf, that Hector gave
Manheim six fictitious checks as payment for six vehicles,
that Blackwell purchased four of the vehicles from Hector,
and that Hector pled guilty to larceny and forgery. The trial
court found that the case of Moore Equipment Company v.
Ha[ferty governed the bona fide purchaser
issues in the case.[4]Accordingly, the trial court determined
that Hector was not a "purchaser" at the auction,
that no title to or ownership interest in the vehicles passed
to Hector, that Hector was not acting on behalf of
Springdale, and that Hector was unable to transfer title to
the vehicles to Blackwell.

The
trial court found that the issue of the dual-employment
status of Officer Knapp and Detective Welby was governed by
Carinelo v. Miller.[5] The trial court found that
Blackwell had failed to comply with Rule 74.04(c)(2) with a
number of its responses, and found inter alia that
no genuine dispute existed that Knapp was on duty with the
Bridgeton Police Department and was present when vehicles 1
and 2 were seized, that Welby was a detective with the
Bridgeton Police Department who supervised the investigation
and recovery of the vehicles, that neither Knapp nor Welby
received direction or instruction from Manheim in connection
with the criminal investigation or seizure, and that the
criminal investigation and vehicle seizure were validated
when Hector admitted the crime.

Blackwell
and DeShields appeal.

Standard
of Review

Summary
judgment allows a trial court to enter judgment for the
moving party where the party demonstrates a right to judgment
as a matter of law based on facts about which there is no
genuine dispute. ITT Commercial Fin. Corp. v. Mid-Am.
Marine Supply Corp.,854 S.W.2d 371, 376 (Mo. banc
1993). Our review is essentially de novo. Id. When
considering an appeal from summary judgment, we review the
record in the light most favorable to the party against whom
the court entered judgment. Id. We can affirm a
summary judgment by any appropriate theory supported by the
record. Missouri Bankers Ass 'n, Inc. v. St. Louis
County,448 S.W.3d 267, 270-71 (Mo. banc 2014).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;For
purposes of summary judgment, a "genuine issue"
exists where the record contains competent materials that
evidence two plausible, but contradictory, accounts of the
essential facts. ITT, 854 S.W.2d at 382. "A
&#39;genuine issue&#39; is a dispute that is real, not merely
argumentative, imaginary or frivolous." Id.
Summary judgment is proper where the "genuine
...

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